Nirvana Farms Limited v Makakaho Land Company Limited

[2020] NZHC 3536

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CIV-2020-483-2

[2020] NZHC 3536

BETWEEN

NIRVANA FARM LIMITED

First Plaintiff

GERALD PEARCE AND PHILIPPA WILLIAMS AS TRUSTEES OF THE TOTARANUI TRUST
Second Plaintiff

SETTLERS HONEY LIMITED

Third Plaintiff

FREWIN & SON LIMITED
Fourth Plaintiff

KAIMĀNUKA HONEY LIMITED

Fifth Plaintiff

AND

MAKAKAHO LAND COMPANY LIMITED

First Defendant

ROGER KENNETH RODERICK PEARCE

Second Defendant

On the papers:
Counsel:	KP Sullivan for Plaintiffs
Judgment:	24 December 2020

JUDGMENT OF CHURCHMAN J

[1]                 On 10 December 2020, Cull J granted an injunction in this matter in favour of the plaintiffs. The injunction was sealed the same day.

NIRVANA FARM LIMITED & ORS v MAKAKAHO LAND COMPANY LIMITED & ANOR [2020] NZHC 3536 [24 December 2020]

[2]                 By memorandum dated  24  December  2020,  counsel  for  the  plaintiffs,  Mr Sullivan, seeks to vary a term of the injunction.

[3]                 Cull J is unavailable and the matter has been referred to me in my capacity as Duty Judge.

The application

[4]                 The memorandum seeks a variation to clause 3(c) of the interim injunction. That clause presently states:

For the purposes of identifying manuka when in flower and checking compliance with the terms of this injunction, the plaintiffs duly appointed employee of their agent, Forrest 360, is permitted to fly a drone over the defendants’ property during daylight hours and following all appropriate rules for the flying of drones during the manuka season on 24 hours’ notice to the defendants or their lawyer, provided that the use of a drone is not used every day.

[5]                 The memorandum of counsel of 24 December 2020 advises that it has been discovered that the solicitors acting for Forrest 360 are the same solicitors used by the defendants, namely Dewhirst Law.

[6]                 The memorandum advised that Forrest 360 has indicated that it will not permit the plaintiffs to fly a drone over the defendant’s property to check compliance with the injunction without a joint instruction confirmed by the defendants’ lawyers, Dewhirst Law.

[7]                 The plaintiffs submit that this is unworkable and requests the Court to amend the injunction so that the words “or a suitably experienced drone operator” added immediately after the words “Forrest 360” in clause 3(c).

Analysis

[8]                 It is now the afternoon of Christmas eve, the few remaining Registry staff are about to depart for their Christmas vacation.

[9]                 Ideally, any variation to the injunction would be made by Cull J who has a detailed knowledge of the matters in issue. However, that is not possible.

[10]              To the extent  that  I  can  ascertain  from  reviewing  the  memorandum  of  24 December 2020, the injunction order, and the substantive file, there is some urgency about the subject matter of the injunction in that the manuka flowering season has either begun or will shortly begin.

[11]              In the circumstances, it is appropriate to deal with the subject matter of the plaintiffs’ memorandum on a without notice basis.

[12]              If Forrest 360 have indeed insisted that a joint instruction confirmed by the defendants’ lawyers is required for them to undertake the work referred to in [3](c) of the injunction of 10 December 2020, then it is possible that the injunction will be frustrated.

[13]              To the extent that the Court is able to discern matters, it does not appear that the reference to Forrest 360 in [3](c) of the interim injunction was made on the basis of any particular attributes of Forrest 360. In other words, it appears that they were nominated to undertake the drone flying because they were a suitably experienced drone operator rather than any factor unique to them.

[14]              It does not appear that the defendants would be disadvantaged by the plaintiffs using an alternative suitably experienced drone operator.

[15]              I am satisfied that it is necessary, in order to ensure the effectiveness of the interim injunction of 10 December 2020 for the amendment sought to be made.

[16]Accordingly, I amend [3](c) of the injunction so as to read:

For the purposes of identifying manuka when in flower and checking compliance with the terms of this injunction, the plaintiffs duly appointed employee of their agent, Forrest 360 or a suitably experienced drone operator, is permitted to fly a drone over the defendants’ property during daylight hours and following all appropriate rules for the flying of drones during the manuka season on 24 hours’ notice of the defendants or their lawyer, provided that the use of a drone is not used every day.

Churchman J

Solicitors:

Port Nicholson Chambers, Wellington for Plaintiffs